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Marshall v. State5/12/1998
OPINION DENYING PETITION FOR CERTIORARI
Barney Marshall, Jr., Petitioner, pled guilty to the crimes of Murder in the First Degree with Malice Aforethought, in violation of 21 O.S.Supp.1982, Section 701.7A (Count I) and First Degree Rape (Count II) in the District Court of Oklahoma County, Case No. CF-90-3512. After a sentencing hearing in which evidence was presented as to aggravating and mitigating circumstances, the Honorable Carolyn Ricks, District Judge, found the existence of two aggravating circumstances, that the murder was especially heinous, atrocious or cruel and that Petitioner would constitute a continuing threat to society. After finding that the mitigating evidence did not outweigh the aggravating factors, the court sentenced Petitioner to death for First Degree Murder and to forty-five (45) years imprisonment for First Degree Rape. Petitioner moved to withdraw his guilty pleas within ten (10) days of the pronouncement of the sentences. The motion was denied. Petitioner has timely filed a Petition for Writ of Certiorari regarding the validity of the pleas and the accompanying sentences.
Facts
On the evening of June 21, 1990, between 7:30 and 8:00 p.m., Petitioner, the victim Helen LeFlore, and her sister Rudy, visited the home of Timothy Gene Bigman and Richard Tiger in Oklahoma City. Mr. Bigman testified that Petitioner and Helen, who was thirteen (13) years of age, drank beer and whiskey until 9:30 or 10:00 p.m., when Petitioner, Helen and Bigman left to walk to a corner store to make a telephone call. After Bigman had been on the telephone for approximately thirty (30) minutes, Petitioner told Bigman that he was going to take Helen home. Petitioner returned to Bigman's residence at approximately 11:00 p.m. alone. He told them that some gang members had seen him at the corner store and chased him through the creek. Tiger testified that Petitioner was "pretty much drunk" and that Helen was "messed up more than he was."
On the morning of June 22, 1990, Helen's body was found in the creek bed below the bridge in the 1600 block of Southwest 23rd Street in Oklahoma City. She was immersed face down in the water and her body was nude except for a T-shirt and bra that had been pushed over her breasts. Dr. Larry Balding, medical examiner, arrived at the scene, took custody of the body for autopsy and based on information previously furnished to him by the police, determined the cause of death to be asphyxia from drowning. Dr. Balding noted that it was possible the victim could have died as a result of the aspiration of food, which also would be an "asphyxial-type death." Dr. Balding found extensive antemortem injuries consisting of bruising, lacerations and abrasions on the face, back, legs and a few areas on the arm, but no severe internal injuries.
The post-mortem injuries consisted of three gaping stab wounds on the right side of the chest, two on the left side of the chest and the throat split all of the way through the airway. The victim had a blood alcohol level of 0.52 % and a vitreous alcohol level of 0.19%. However, Dr. Balding stated that the alcohol level can be much greater after death because of post-mortem formation of alcohol, which is a product of the action of bacteria on the sugar in the body. When asked whether any intercourse occurred, Dr. Balding could not say with any degree of certainty. Swabs of the vaginal area were normal and revealed no evidence of sperm; and there was no evidence of trauma to the vaginal area. Other facts will be revealed in the relevant assignments of error.
Acceptance of the Pleas
In his first assignment of error, Petitioner contends that his confessions were o
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